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2016 DIGILAW 512 (CAL)

Zakir Sheikh v. Md. Esrail

2016-06-27

DEBASISH KAR GUPTA, MD.MUMTAZ KHAN

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JUDGMENT : Debasish Kar Gupta, J. This appeal is directed against a final order dated February 8, 2013 passed by the learned Single Judge in the writ application directing the Sub-Divisional Controller, Food & Supplies, Nalhati, Rampurhat, Birbhum to issue M.R. Dealership licence in favour of the writ petitioner subject to fulfillment of all necessary conditions and/or requisites within the period mentioned in the impugned order. 2. There is no dispute with regard to the factual matrix of this case. The respondent no.5 invited applications from the eligible candidates for filling up of vacancy of M.R. Dealer of Kumarsanda in Nowapara Gram Panchayat under Nalhati-II, Loharpur Block of Nalhati Police Station, District-Birbhum by virtue of a notice dated December 12, 1985. Eight candidates, including the appellant and the respondent no.1, participated in the above selection process. Respondent no.3 conducted an enquiry in respect of the above applications and submitted his enquiry report dated January 20, 1986 to the respondent no.5 for taking further steps in the matter. In preparing the above report, the financial solvency, all documents of the applicants and capacity and conditions of the godowns of the candidates were taken into consideration. The respondent no.5 forwarded the above report to the Nalhati-II Panchayat Samity, Loharpur, District-Birbhum for consideration by the Khadya-O-Sarbaraha Sthayee Samity with his comment in favour of granting licence to the respondent no.1. 3. But the Khadya-O-Sarbaraha Sthayee Samity of the above Panchayat Samity recommended the name of the appellant for granting licence of M.R. Dealership for the area concerned. Since there was a disagreement in between comment of the respondent no.4 and recommendation of the Khadya-O-Sarbaraha Sthayee Samity of the above Panchayat Samity, all records relating to the selection process of the M.R. Dealer concerned were forwarded by the respondent no.4 to the Khadya-O-Sarbaraha Sthayee Samity of Birbhum Zilla Parishad through the respondent no.6. Khadya-O-Sarbaraha Sthayee Samity of the Zilla Parishad, Birbhum recommended the name of the appellant for granting licence of M.R. Dealership in his favour. The above procedure was followed adhering to non-statutory guideline framed by the Directorate of District Distribution, Procurement and Supply, West Bengal under Memo. No.574 (125)/FMR/2/66/Pt 1 dated May 22, 1985 (hereinafter referred to as the said non-statutory guideline) prescribing the procedure for appointment of M.R. Distributors and M.R. Dealers. 4. The above procedure was followed adhering to non-statutory guideline framed by the Directorate of District Distribution, Procurement and Supply, West Bengal under Memo. No.574 (125)/FMR/2/66/Pt 1 dated May 22, 1985 (hereinafter referred to as the said non-statutory guideline) prescribing the procedure for appointment of M.R. Distributors and M.R. Dealers. 4. The respondent no.1 filed the writ application, which gives rise to this appeal, challenging the recommendation of the name of the appellant. His main ground for challenging the above recommendation was the recommendation of name of the appellant following the procedure prescribed in the said non-statutory guideline. 5. It is submitted by Mr. Rabilal Moitra, learned Senior Advocate appearing on behalf of the appellant that he was selected for granting licence of M.R. Dealership in respect of the vacancy in question adhering to the said non-statutory guideline. It is further submitted on behalf of the appellant that there was no statutory provision for selection of M.R. Dealer at the material point of time and as a result the selection of the appellant adhering to the said non-statutory guideline was valid in the eye of law. According to the appellant, the decision of the learned Single Judge for appointment of the respondent no.1 cannot be sustained in law. 6. It is submitted by the State respondents that there is no dispute with regard to the fact of selection of the appellant adhering to the said non-statutory guideline which provided for consultation with Khadya-O-Sarbaraha Sthayee Samity of the Panchayat Samity concerned. 7. It is further submitted on behalf of the respondent no.1 that in exercise of powers conferred by Section 3 of the Essential Commodities Act, 1955 (hereinafter referred to as the said Act, 1955), read with the Government of India, Ministry of Food, Agriculture, Community Development and Cooperation (Department of Food), Order No. G.S.R. 1111, dated July 24, 1967, as subsequently amended, the Governor was pleased to make the West Bengal Rice and Paddy (Licensing and Control) Order, 1967 (hereinafter referred to as the said Control Order, 1967). Under the provisions of paragraph 2 (k) (i) of the said Control Order, 1967, the Sub-Divisional Controller of Food Supplies in the Department of Food and Supplies of Government having jurisdiction in the area was the competent authority to issue licence to the M.R. Dealer under the said Control Order, 1967. Under the provisions of paragraph 2 (k) (i) of the said Control Order, 1967, the Sub-Divisional Controller of Food Supplies in the Department of Food and Supplies of Government having jurisdiction in the area was the competent authority to issue licence to the M.R. Dealer under the said Control Order, 1967. The Directorate of District Distribution, Procurement and Supply had no power to frame non-statutory guideline overriding the above provisions of the said Control Order, 1967 to authorise a Khadya-O-Sarbaraha Sthayee Samity of a Panchayat Samity to recommend the name of a candidate for granting licence of M.R. Dealership in favour of any candidate. 8. Having heard the learned Counsels appearing for the respective parties as also after considering the facts and circumstances of this appeal, we find that the decision making process of the respondent authority in selecting the appellant for granting licence of M.R. Dealership in question was under challenge in the writ application. The procedure prescribed in the said non-statutory guideline was followed in the matter of selection of the appellant. 9. The object of the said Act, 1955 is to secure availability of essential commodities to the general public at a fair prices and to protect their interest by way of equitable distribution of essential commodities. 10. Section 3 of the said Act, 1955 lays down that the Central Government may by order provide for regulating or prohibiting the production, supply and distribution of essential commodities and trade and commerce therein if the Central Government is of the opinion that it is necessary or expedient so to do for maintaining or increasing supplies of essential commodities or for securing their equitable distribution and availability at fair prices or for securing any essential commodity for the defence of India or the efficient conduct of military operations. Section 5 of the said Act, 1955 authorises the Central Government to further delegate its functions and powers under the said Act, 1955 to the State Government, or such officer or authority subordinate to the concerned State Government as may be specified in the direction. 11. Section 5 of the said Act, 1955 authorises the Central Government to further delegate its functions and powers under the said Act, 1955 to the State Government, or such officer or authority subordinate to the concerned State Government as may be specified in the direction. 11. Considering the facts and circumstances involved in the present case, we find that the Governor of the State of West Bengal was pleased to make the said Control Order, 1967, in exercise of powers conferred by Section 3 of the said Act, 1955 read with the Government of India, Ministry of Food, Agriculture, Community Development and Cooperation (Department of Food), Order No. G.S.R. 1111 dated July 24, 1967. 12. Under the provisions of sub-paragraph (2) of paragraph 1, the said Control Order, 1967, extended to the whole of the West Bengal except the areas in which the West Bengal Rationing Order, 1964, is for the time being in force. Under the provisions of sub-paragraph (3) of paragraph 1, the provisions of paragraph 1 came into force on the first day of January, 1968. 13. A person who is engaged in any business or undertaking involving sale, purchase for sale or storage for sale or transfer of rice or paddy, amongst other comes within the definition of “dealer” under the provisions of sub-paragraph (d) of paragraph 2 of the said Control Order, 1967. Under Clause (i) of subparagraph (k) of paragraph 2 of the said Control Order, 1967, the Sub-Divisional Controller of Food and Supplies in the Department of Food and Supplies of the Government, having jurisdiction in the area is the “licensing authority” to issue the licences under the said Control Order, 1967. Therefore, we find substance in the submissions made on behalf of the respondent no.1 that the respondent no.5 was the appropriate authority to issue licence for filling up of the vacancy of M.R. Dealership under reference. 14. It is the settled principle of law that where a power is given by the statute to do certain thing in a certain way, it must be done in that way and other methods of performance are forbidden. The above proposition of law laid down in the matter of Taylor vs. Taylor, reported in (1876) 1 Ch 426 was followed by the Privy Council in Nazir Ahmad vs. King Emperor, reported in AIR 1936 PC 253 . The above proposition of law laid down in the matter of Taylor vs. Taylor, reported in (1876) 1 Ch 426 was followed by the Privy Council in Nazir Ahmad vs. King Emperor, reported in AIR 1936 PC 253 . The above proposition of law was adopted by the Hon’ble Supreme Court in the matter of State of U.P. vs. Singhara Singh, reported in AIR 1964 SC 358 for the first time. The above settled principle of law was repeated and reiterated time and again by the Hon’ble Supreme Court. Reference may be made to the decision of Ram Phal Kundu vs. Kamal Sharma, reported in (2004) 2 SCC 759 and the relevant portion of the above decision is quoted below:- “12. . . . . The Rule laid down in Taylor v. Taylor that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all and that other methods of performance are necessarily forbidden, was adopted for the first time in India by the Judicial Committee of the Privy Council in Nazir Ahmad v. King Emperor. . . . . In State of U.P. v. Singhara Singh a Second Class Magistrate not specially empowered, had recorded confessional statement of the accused under Section 164 CrPC. The said confession being inadmissible, the prosecution sought to prove the same by the oral evidence of the Magistrate, who deposed about the statement given by the accused. Relying upon the rule laid down in Taylor v. Taylor and Nazir Ahmad v. King Emperor it was held that Section 164 CrPC. which conferred on a Magistrate the power to record statements or confessions, by necessary implication, prohibited a Magistrate from giving oral evidence of the statements or confessions made to him. This principle has been approved by this Court in a series of decisions and the latest being by a Constitution Bench in CIT v. Anjum M.H. Ghaswala (SCC para 27). . . . .” 15. To sum up, as a general rule and if the statute directs that certain act shall be done in a specified manner or by a certain persons, their performance in any other manner than that specified or by any other person than one of those named is impliedly prohibited. . . . .” 15. To sum up, as a general rule and if the statute directs that certain act shall be done in a specified manner or by a certain persons, their performance in any other manner than that specified or by any other person than one of those named is impliedly prohibited. Or in other words, normally, a discretion entrusted by Parliament to an administrative organ must be exercised only by that organ itself. 16. Coming back to the present case, we are of the opinion that the West Bengal Panchayat Act, 1973 provided for constitution of several Sthayee Samity but Khadya-O-Sarbaraha Sthayee Samity did not find place therein. Be that as it may, no power is given under the said Control Order, 1967 to the Directorate of District Distribution, Procurement and Supply to frame any guideline for selection of a candidate for issuing licence of M.R. Dealership in his favour. Therefore, the licensing authority prescribed in sub-paragraph (k) of paragraph 2 of the said Control Order, 1967, i.e. the Sub-Divisional Controller of the area concerned (respondent no.5 in this case) must apply his mind independently and in the event he acted on the basis of an advice or a recommendation made by any authority who had no role to play under the said Act, 1955 read with the said Control Order, 1967, such act would be void. 17. In view of the observations, we do not find any substance in the submissions made on behalf of the appellant that initially an agreement had to be executed by and between the State Government and the selected candidate for appointment as M.R. Dealer on the basis of his selection adhering to the non-statutory guideline who was to obtain licence subsequently from the appointing authority under the said Control Order, 1967. Taking into consideration the facts and circumstances of the present case we find that the name of the respondent no.1 was recommended by the respondent no.5 in respect of the vacancy of M.R. Dealership in question at the initial stage. Taking into consideration the facts and circumstances of the present case we find that the name of the respondent no.1 was recommended by the respondent no.5 in respect of the vacancy of M.R. Dealership in question at the initial stage. At a subsequent stage of selection process, there was disagreement of the Sub-Divisional Officer concerned with the recommendation of the Sthayee Khadya-O-Sarbaraha Samity of the Panchayat Samity concerned leading to the incident of forwarding of the entire matter to the Zilla Parishad concerned through the District Magistrate of the District concerned in accordance with the procedure prescribed in the non-statutory guideline. In the matter of appointment of M.R. Dealership in question the above procedure cannot be sustained in law. The opinion of the respondent no.5, i.e. Sub-Divisional Controller Food and Supply, Birbhum must prevail. 18. Though the above issue was not decided by the learned Single Judge in the writ application in the light of the settled principle of law, as discussed hereinabove, there is no scope to interfere with the direction of the learned Single Judge upon the respondent authority to issue licence of M.R. Dealership under reference in favour of the respondent no.1 in view of the discussion and observation made hereinabove. 19. This appeal is, thus, dismissed. 20. Since the period fixed by the learned Single Judge for appointment of the respondent no.1 as M.R. Dealer in respect of the area concerned has already been expired, we extend the period of appointment of the respondent no.1 as M.R. Dealer for the area concerned within a further period of two months from date. 21. There will be, however, no order as to costs. 22. Urgent photostat certified copy of this judgment, if applied for, be given to the parties, on priority basis. I agree : Md. Mumtaz Khan, J.